Campaign for the Accountability of American Bases

Menwith Hill Writ

The Story of the Legal Action at NSA Menwith Hill and Fylingdales

From CAAB Newsletter No. 15

Against the building of two Space Based Infra Red System (SBIRS) radomes at NSA Menwith Hill Station and the proposed use of ‘RAF’ Fylingdales North Yorkshire for the American National Missile Defense System

Briefing
The Campaign for the Accountability of American Bases (CAAB) works in many different ways to bring accountability and public scrutiny to the American National Security Agency base at Menwith Hill Station (MHS) North Yorkshire (and other American bases). The campaign is grounded in a deep concern and opposition to weapons of mass destruction in general and nuclear weapons in particular. As an American Command, Control, Communications and Intelligence (C3I) base MHS plays a crucial part in enabling the nuclear programme to exist.
One of the ways CAAB works has been to monitor all planning applications concerning the developments on the base. CAAB has done this for many years. Another avenue of work is to bring legal actions about violations of law by the executive and those in ‘authority’ through the courts.

New role for NSA Menwith Hill Station
In 1996 a series of planning applications for proposed developments at MHS were submitted to Harrogate Planning Department signalling what turned out to be a major development. No information as to what this development actually meant was included and it was not until a press release came to our attention that the true nature of the new role for MHS became apparent. The new role for MHS was to be a crucial part of the rebirth of Reagan’s ‘Star Wars’. ‘Star Wars 2’ had been allowed to slip quietly in with no debate in Parliament.

One of the proposed applications was for the construction of two Space Based Infra Red System (SBIRS) radomes or ‘golf balls’. The press release revealed that MHS was to be designated the European Relay Ground Station for the SBIRS. The two SBIRS radomes were to be part of the American Ballistic Missile Defense (BMD) programme which in turn was to be an integral part of the wider offensive National Missile Defense (NMD) programme. The stated intention of the USA is to dominate space for American interests only.

The Russians and Chinese warned darkly that NMD will herald the start of a new nuclear arms race, as the Anti-Ballistic Missile Treaty (ABM) 1972 would be breached if the Americans deployed the NMD system. The press release also said that construction of the two SBIRS radomes was to start in November 1999 and come ‘on-line’ in February 2000.

CAAB spent a lot of time researching, alerting the press/media and talking to lawyers, politicians and academics over two years about the implications of what was planned at MHS. The issue was very slow to be taken up. There was very little interest from the press despite CAAB continually trying to raise the issue of NMD at MHS.

Claim in the High Court London
At the beginning of October 1999 we noticed that contractors equipment was being moved on to the site where the two SBIRS radomes were to be built. Within three days Lindis and Anni (CAAB) had got a Claim together seeking an application for an injunction to stop the continued construction. The Claim was that by the building of the two SBIRS radomes local, national and international laws would be violated; specifically the ABM Treaty 1997 and the Outer Space Treaty 1969. At this point we had no legal help or any other help for that matter.

First chapter of the Claim
The Claim was brought by Lindis (Co-coordinator of CAAB). It was issued in the High Court London on 15 October 1999 against four defendants. The defendants were:

• Colonel D Harthcock – the American base Commander of MHS who is in occupation and control at MHS.
• Secretary of State for Defence – who is in possession of the land at MHS.
• Defence Land Agent – who acts on behalf of the American ‘client’ for planning applications, developments and construction at MHS.
• Squadron Leader H Vincent – RAF Liaison officer – a token post at the base known as ‘RAF Menwith Hill’.

Second chapter of the Claim
The Claim was duly served on all four defendants. The First Defendant (represented by Clifford Chance – the biggest law firm in the world) immediately made an application for an extension of time; one of the grounds being that the First Defendant needed more time to consult with the US government. Lindis opposed the application; however it was granted in the High Court by Master Tennant on 10 November 1999. The other defendants (represented by the Treasury Solicitor) followed with a similar application which was granted by Master Tennant (unopposed by Lindis).

Third chapter of the Claim
On 13 January 2000 the 2/3/4 defendants made an application for the Claim to be ‘struck out’(observed by Clifford Chance lawyers for the First Defendant) on the grounds that the Claim was ‘an abuse of the process of the court’ and therefore had no chance of success.

There were nine representatives from the ‘other side’. Lindis was now represented by Matthew Gold (Solicitor of Birnberg, Peirce and Partners) and Stephen Cottle (Barrister at 2 Garden Court London) on a ‘pro bono’ basis. The hearing was in Chambers before Master Tennant. Professor Paul Rogers (Bradford University Department of Peace Studies) and Professor Nick Grief (Bournemouth University) submitted statements on behalf of Lindis Percy.

Outcome of hearing
Master Tennant suggested that the Claim be amended. Costs of £4,500 for the legal stages so far were awarded against Lindis; to be paid before the Claim was amended.

An appeal to raise the money was so successful that the costs were paid to the Treasury Solicitor within two weeks. Grateful thanks to everyone who enabled the Claim to continue.

The First Defendant gave notice that he intended to claim ‘state immunity’. He sought costs of £13,000 against Lindis . However the Solicitor acting for the First Defendant informed Lindis that they would agree not to pursue half the costs if she would agree not to bring any further actions against the US governments of any of their agents. She declined to agree to their suggestion.

First Defendant out
On 13 July 2000 Colonel Clyde D Harthcock was successful in his application to be withdrawn from the action by using ‘state immunity’. Costs were awarded against Lindis. The First Defendant has now increased his costs to £16,173.06p which are disputed.

Fourth chapter of the Claim
The Claim was extensively amended. Fylingdales in North Yorkshire which is also due to become a crucial part of the NMD systems was added to the Claim. The 2/3/4 Defendants were now represented in the High Court London by Professor Christopher Greenwood a practicing lawyer and expert on international law from Imperial College London. Owen Davies QC, Stephen Cottle Barrister and Mathew Gold Solicitor were going to represent Lindis Percy.

The Claim was due to be heard before a Judge in open Chambers on 5 October 2000. The 2/3/4 Defendants intended to make an application to have the Claim ‘struck out’.

Decision to keep NMD ‘on hold’ by President Clinton
On 1 September 2000 President Clinton announced that he would not go-ahead with the NMD system but he would leave the decision to the next President; to be elected in November. He recommended that further research and development of the NMD system should continue at a pace.

Final chapter of this particular chapter
There was a conference in London on 22 September 2000 with Owen Davies QC and the legal team and Professor Nick Grief. Lindis was advised to withdraw the Claim. She accepted this advise which was reached principally because of the announcement by President Clinton; to leave the decision to deploy NMD to the next President.

The Treasury Solicitor for the 2/3/4 Defendants is claiming £11,000 costs against Lindis.

The future…………………
We have learnt a tremendous amount about NMD etc and also about the complex law involved in such a Claim. We are now reviewing all our options and will be ready for such a time when/if the UK government gives formal permission for the use of MHS and Fylingdales to used by the US for the NMD system.

Anni continues to monitor the Planning Departments for both MHS and Fylingdales for any developments. It was after all through this work that we first learnt about the new role of NMD and the NMD (‘golf’) ball began to slowly roll.

See also the witness statement on SBIRS and NMD by David Wright of the Union of Concerned Scientists.

Previous News Updates:

27th September 2000

The hearing for the application by the 2/3/4 Defendants (UK Secretary of State for Defence, Defence Land Agent and RAF Liaison Officer at NSA Menwith Hill) for the Claim by Lindis Percy (Co-coordinator of the CAMPAIGN FOR THE ACCOUNTABILITY OF AMERICAN BASES – CAAB) was probably to be heard on 5 October 2000. The date had yet to be confirmed.

There was a conference with Leading Council and the legal team on 22 September 2000. Lindis Percy was advised to withdraw the proceedings principally because of the announcement on 1 September 2000 when President Clinton decided not to authorise the deployment of the National Missile Defense system. Lindis Percy accepted this advice.

Thank you so much to everyone who helped and enabled the Claim to proceed to such a significant point (the Claim challenged the building of the two Space Based Infra Red System radomes at NSA Menwith Hill and the proposed use of Fylingdales in the NDM system)

The First Defendant (Colonel Clyde D Harthcock – American Base Commander at NSA Menwith Hill) was successful in his application to withdraw by using ‘state immunity’ and therefore did not have to defend himself in the Claim. All Defendants are now claiming massive costs against Lindis Percy.

Update – 31st July 2000
In the High Court London Colonel Clyde D Harthcock (First Defendant and American base Commander at MHS) was successful in getting himself withdrawn from the Claim. He used ‘state immunity’ to do this. He is now claiming costs of £16,173.06p against Lindis.

Update – 16th July 2000
The next hearing is likely to be in September or October now. Professor Christopher Greenwood – a practicing QC and legal academic from Imperial College is to represent the 2/3/4 defendants. The case will be heard in public in the High Court London.

Update – 28th June 2000
The 2/3/4 Defendants successfully applied for the next phase of the Claim to be heard by a Judge – instead of Master Tennant who has heard the case up until now. We await a date for a hearing which we hope will be in open court. The Claim has been amended. Professor Christopher Greenwood QC is to represent the 2/3/4 Defendants.

1st May 2000
The hearing on 11 May 2000 has been adjourned. The Treasury Solicitor requested a longer hearing (half to one day) for the hearing on 11 May and wanted the hearing before a Judge. Matthew Gold (representing Lindis) has had to agree to the adjournment (originally a 20 minute hearing) as he will be out of the country and the hearing (no date as yet) will be for half a day before Master Tennant.

---

April 23 2000
The next stage of the Claim is to be heard in the High Court (in Chambers before Master Tennant) at 12 md on 11 May 2000. We are making an application:

• that permission be given to amend the Particulars of Claim
• to dismiss the application by the Second, Third and Fourth Defendants to strike out the Particulars of Claim
• that time for service of the Defences of the First, Second, Third and Fourth Defendants be extended to 28 days following service by the Claimant of the Amended Particulars of Claim

In the meantime the concrete bases of the two SBIRS radomes have been constructed, the area tarmac-ed and crates of sections for the radomes are on site (Updated 23 April 2000).

Lindis’ solicitor has had a letter from Clifford Chance’s solicitor (acting for Colonel Clyde D Harthcock) in response to her reluctantly discontinuing the action against him (he has said he will claim state immunity) which asks for costs against her for £13000. Clifford Chance (acting for the First Defendant) are claiming costs against Lindis of £6000 to be paid within 14 days. They say they will waive the rest of the balance if she gives an undertaking not to bring any action connected with this matter against the United States Government or their agents. She has declined.

---

January 13 2000
Great news … the Writ to try and stop work on the American Space Based Infra Red System (SBIRS) NSA Menwith Hill, near Harrogate, North Yorkshire, England, has NOT been struck out!

Today (13th January 2000) in the High Court, London, Master Tennant denied an application by the Treasury Solicitor (on behalf of the two UK defendants – Secretary of State for Defence; Defence Land Agent, and RAF Liason Officer at NSA Menwith Hill) that the Writ be struck out on the grounds of ‘Abuse of Process of the Court’.

[The 1st Defendant (American Base Commander at MHS) has separated from the three British Defendants and was represented by Clifford Chance (largest law firm in the world) at a later hearing when they too will apply to have the Writ struck out and claim that the British Courts have no jurisdiction to hear this case.]

Lindis Percy, co-co-ordinator of CAAB, represented by Stephen Cottle (barrister) and Matthew Gold (solicitor) vigorously opposed the Application, heard in Chambers, this morning. Statements in support of the Writ were submitted to the court from Professor Paul Rogers (Dept. of Peace Studies, Bradford University) and Professor Nicholas Grief (Law of International Organisations and Head of the School of Finance and Law, Bournemouth University).

Master Tennant ruled that the Application be denied and that we now have to amend the Writ and submit it to him for permission to go ahead with a full trial in front of a Judge. Another wee step forward!

The down-side
… was that he awarded the Defence’s Costs of £4,500 against Lindis. These Costs must be paid in full within two months before the Writ (amended) can be put in front of Master Tennant again.

This Writ has cost us a lot so far and £4,500 is a huge amount although it seems a small price to pay to try and stop the new Star Wars from operating here in the UK at NSA Menwith Hill.

Already the concrete bases have been constructed for the two new radomes which are intended to house the SBIRS satellite dishes and equipment for the SBIRS European Ground Relay Station (a crucial part of the American National Missile Defense system also known as ‘Son of Star Wars’). It is being paid for by the US government; operated and controlled by the Americans, and condoned by the UK government. It has never been debated in the British Parliament. It is unlawful, undemocratic and unwanted!

If any one would like to send a donation to help us pay the £4,500 Costs and enable us to continue with the Writ and our other peace work we would be tremendously grateful. Cheques should be made out to CAAB or our full title Campaign for the Accountability of American Bases(CAAB). All help, great and small will be thankfully received!

Background …

On 14 October 1999 a Claim (formally known in the English legal system as a Writ) was issued in the High Court in London to seek an injunction to stop the building of two Spaced Based Infra Red System radomes at Menwith Hill. The Claim was served the following day on:

1. Colonel Clyde D Harthcock (he is the American Base Commander at Menwith Hill which is occupied and controlled by the Americans)

2. The British Secretary of State for Defence (he is in possession of the land at Menwith Hill)

3. The Defence Land Agent (acts on behalf of the Americans in all planning and building developments at Menwith Hill)

4. Squadron Leader H Vincent (nominal RAF Liason Officer at Menwith Hill now known as ‘RAF’ Menwith Hill).

In 1997 ‘Her Majesty’s Government announced that Menwith Hill was due to become the European Ground Relay Station (RGS-E) for the Space Based Infra Red System (SBIRS) which, as many of you know, is part of the American National Missile Defense System (rebirth of ‘Stars Wars’). Planning permission (Harrogate Planning Committee cannot object to planning applications on Crown land) was given two years ago for the construction of two SBIRS radomes and a sub-station as part of this frightening new system.

We believe that the siting of this system at Menwith Hill breaches local, national and international law, in particular the Anti-Ballistic Missile Treaty 1972 and ‘Outer Space Treaty’ of 1967. Britain like America, has ratified both Treaties and by allowing the land to be used for this purpose it is also in breach of international law.

The concrete bases of the two Spaced Based Infra Red System (SBIRS) radomes have now been built at NSA Menwith Hill ready for the satellite dishes and radomes that will cover them.

See also:

Activists issue writs to stop ‘Star Wars’ plans – 26th October 1999

Writ served on Menwith Hill – 14th October